The defendant is a small, New Hampshire based coffee company that developed a dark roast they decided to call Charbucks blend. Starbucks didn’t like the name and sued, and its primary claim was for “dilution” due to “blurring.” Generally, dilution by blurring occurs when a mark or trade name is so similar to a famous mark that it impairs the distinctiveness of the famous mark. Hypothetical examples of blurring cited by other courts include Dupont shoes, Buick aspirin tablets, Schlitz varnish, Kodak pianos, and Bulova gowns.

During a bench trial in federal court of Starbucks Corp. v. Wolfe’s Borough Coffee, a consumer research scientist testified that a study he performed revealed — not surprisingly — that most people think of Starbucks when they hear the name Charbucks. The Court, however, dismissed the Complaint.

While the appeal was pending, Congress passed the Trademark Dilution Revision Act of 2005 (TDRA), which provided that the owner of a famous, distinctive mark is entitled to an injunction when the use of the offending mark is “likely to cause dilution.” The TDRW was passed in response to a Supreme Court ruling that held “actual dilution” must occur in order to establish a claim. The Starbucks case was remanded back to the trial court but the outcome was the same, and the Complaint again dismissed.

However, on appeal, the Second Circuit held the trial court incorrectly used the pre-TDRA standard that required a “substantial similarity” between the marks for a plaintiff to prevail on a dilution claim, as opposed to the “likely” standard in the new statute. The district court also erred by disregarding the defendant’s intention to associate with Starbucks because there was no “bad faith” – an unnecessary element. Further, the district court should have credited the Starbucks study that showed more than 30% of consumers associated Charbucks with Starbucks, even though very few confused the two names. The appellate court rejected any claims that the Starbucks name was “tarnished” however.

The case was sent back to the district court to consider the appropriate standard. We expect the outcome will be the same. But the appellate court made clear that TDRA has diluted the standard for dilution claims.

http://www.ca2.uscourts.gov/decisions/isysquery/e4be4a5e-b207-4f59-ab0e-2250903934cc/4/doc/08-3331-cv_opn.pdf

E coli contamination (usually from O157:H7) is the major source of beef recalls. New vaccines that have just been approved for use in the US market are designed to reduce e coli outbreaks. According to preliminary studies, use of the new vaccines will reduce the number of animals carrying the e coli bacteria by 65 to 75%. Use of the vaccines is also predicted to reduce the number of supershedders, i.e. those cows that carry particularly high levels of e coli in their digestive tracks.

If you would like more information about this post or our product recall practice, please contact Bob Cosgrove at .

http://www.nytimes.com/2009/12/04/business/04vaccine.html?hp

In most personal injury cases, an independent medical examination referral is a necessary evil. In low value cases, this can be problematic in that the usual $1,500 cost of an IME (by a doctor) can be worth almost as much as the case itself (especially in Philadelphia’s arbitration court). The nature of the business may, however, be about to change. Earlier this week the PA Supreme Court heard arguments in the case of Freed v. Geisinger Medical Center . At issue in this case is whether a registered nurse can opine on both the standard of nursing care and medical causation under PA’s Medical Care Availability and Reduction of Error Act. If the court rules that a registered nurse can opine on medical causation (assuming they otherwise meet the expert standards), there may suddenly be a much larger pool of experts to draw from.

If you would like more information about this post, please contact Bob Cosgrove at .

http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202436044407&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20AM%20Legal%20Alert&cn=TLI_AM_LegalAlert_20091204&kw=High%20Court%20Considers%20Scope%20of%20Nurses’%20Testimony%20Again&slreturn=1&hbxlogin=1

The case of Commercial Insurance Company of Newark v. Popadich involved a rather sensational incident which took place in Manhattan several years ago. In February 2002, on two separate occasions, Ronald Popadish drove into Manhattan and ran down 27 pedestrians.

One of Popadich’s, victims, Chetan Mangat, then brought a personal injury action against Popadich in Supreme Court, Kings County for injuries he suffered after being struck by Popadich’s vehicle. Popadich’s insurer, Commercial Insurance Company of Newark provided Popadich with counsel to defend him in that action under a reservation of rights. Although, after his arrest, Popadich had confessed that he drove into Manhattan for the sole purpose of running over as many people as possible, Mangat was awarded summary judgment in the Kings County action on the basis that Popadich’s negligence caused Mangat’s injuries.

Commercial Insurance then brought a declaratory judgment action in Supreme Court, New York County against Popadich, Mangat and other victims of Popadich’s rampage. In the New York County action, Commercial sought a declaration that it owed Popadich no duty to defend or indemnify arguing that Popadich’s actions were intentional and, as such, the resulting injuries were not covered under the policy.

The New York County court rejected the proposition that Commercial Insurance was estopped from bringing the declaratory judgment action due to its appointment of counsel in the Kings County action, noting its reservation of rights and the fact that the issue of intentional acts was not argued in that case. Citing Popadich’s signed and transcribed confession, the New York County granted summary judgment to Commercial Insurance on the grounds that Popadich’s actions were intentional. This decision was upheld on appeal to the Appellate Division.

Thanks to Katusia Lundi for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08858.htm

In Jappa v. Starett City, Inc., the plaintiff was walking in the lobby of a building owned by the defendant when a tile fell from the ceiling and struck her in the head. The defendant moved for summary judgment on the ground that it did not have actual or constructive notice of the alleged ceiling defect. The trial court denied the defendant’s motion. The defendant appealed.

The Appellate Division, Second Department, held that the defendant established that it had no actual or constructive notice of a defective condition in the ceiling. The Court also held that the plaintiff failed to raise a triable issue of fact as to the defendant’s actual or constructive notice. However, the Court affirmed the decision of the lower court. The Court stated that tiles falling from a ceiling was not an ordinary occurrence in the absence of negligence. Because the ceiling was under the defendant’s exclusive control and no negligence was attributable to the plaintiff, the Court held that there was a basis for liability under the doctrine of res ipsa loquitor, which allows a plaintiff to use circumstantial evidence to meet its burden of proof in negligence cases. The Court reasoned that the defendant failed to negate the applicability of res ipsa loquitor and denied the motion.

Thanks to Brad Thelander for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08787.htm

In Bretts v. Lincoln Plaza Associates, the plaintiff injured herself in Johnny’s Pizza when she allegedly tripped and fell over a single-step riser separating the workers’ area and the patrons’ area at premises owned by the defendant Lincoln Plaza Associates, Inc., and leased to the defendant Johnny’s Pizza.

Johnny’s moved for summary judgment, which the lower court denied. On appeal, the Second Department determined that Johnny’s had made the requisite showing for summary judgment. There was a gold-color nosing on the step, and the pattern of the tiles on top of the step was different from the pattern of the tiles below the step. There was also a sign stating “Watch Your Step” adjacent to the step. Though, plaintiff testified she did not see the step or the sign before the accident, the Second Department held that the step was “open and obvious” and “not inherently dangerous.”

Thanks to Alison Weintraub for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08771.htm

In Ruoff v. American Asphalt Company, the plaintiff was driving an automobile owned by his employer, defendant American Asphalt Company, Inc. (American Asphalt). Penn National insured the vehicle. Plaintiff filed a claim for UM/UIM coverage with Penn National. The insurer “stepped down” the amount recoverable by plaintiff from $1,000,000 to $100,000, the maximum amount of coverage available under plaintiff’s wife’s auto insurance policy. Having exercised the step-down provision, Penn National denied the claim.

The plaintiff subsequently filed a complaint against his employer and Penn National alleging that the step-down provision was vague and ambiguous, that the broker
and Penn National owed a duty to disclose to his employer the consequences of the step-down provision to its employees and deprived the employer of exercising an informed choice, and that enforcement of the step-down provision by insurers, such as Penn National, was against public policy

The trial court denied plaintiff’s motion and dismissed all claims against defendant Penn National. Soon thereafter, the Legislature passed and the Governor signed an amendment to N.J.S.A. 17:28- 1.1 (f), which provides: …” a motor vehicle liability policy or renewal of such policy of insurance insuring against loss sustained by any person arising out of the ownership, maintenance or use of motor vehicle issued to a corporate or business entity shall not provide less uninsured or underinsured motorist coverage for an individual employed by the corporate or business entity…”

The Appellate Division was asked to determine whether the subsequent amendment to the statute should be applied prospectively or retroactively. The court held that the amendment is to be applied prospectively. The Appellate Division reasoned that at the time of his accident, neither plaintiff nor Penn National had any reasonable expectation that the step-down provision was unenforceable. Retroactive application of the amendment to plaintiff would amount to a windfall for him and a dramatic alteration of expectations founded in contract for Penn National. Thus, retroactive application of the amendment would defeat the insurer’s reasonable reliance on settled legal principles and its reasonable expectations. Furthermore, plaintiff had no reasonable expectation of the greater benefit.

Thanks to Sheila Osei for her contribution to this post.

http://www.judiciary.state.nj.us/opinions/a0958-08.pdf